State v. Silva

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                                                         Electronically Filed
                                                         Supreme Court
                                                         SCWC-XX-XXXXXXX
                                                         29-DEC-2023
                                                         08:12 AM
                                                         Dkt. 45 OP



           IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

                              ---o0o---


                         STATE OF HAWAIʻI,
                  Respondent/Plaintiff-Appellee,

                                 vs.

                   KUMULIPO IWA COYOTE SYLVA,
                 Petitioner/Defendant-Appellant.


                          SCWC-XX-XXXXXXX

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
           (CAAP-XX-XXXXXXX; CASE NO. 2CPC-XX-XXXXXXX)

                         DECEMBER 29, 2023

           RECKTENWALD, C.J., McKENNA AND EDDINS, JJ.,
   CIRCUIT JUDGE KAWASHIMA IN PLACE OF NAKAYAMA, J., RECUSED,
AND CIRCUIT JUDGE NAKAMOTO IN PLACE OF WILSON, J., RECUSED

               OPINION OF THE COURT BY McKENNA, J.

                         I.    Introduction

    Defendant Kumulipo Iwa Coyote Sylva (“Sylva”) was charged

by indictment with second-degree murder for killing Eduardo

Alejandro Cerezo (“Cerezo”).    Sylva admitted to killing Cerezo

but asserted the affirmative defense of a physical or mental
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disease, disorder, or defect excluding penal responsibility

(“insanity”).

     Sylva’s jury trial turned largely on the testimony of three

medical examiners appointed by the Circuit Court of the Second

Circuit (“circuit court”).    The examiners testified concerning

Sylva’s mental state pursuant to Hawai‘i Revised Statutes (“HRS”)

§ 704-410 (2014).   All three examiners agreed Sylva was affected

by a mental disease, disorder, or defect at the time of the

conduct.   Two of the examiners further opined that, as a result,

Sylva lacked capacity under the legal standard for insanity,

thus excluding criminal responsibility.     One examiner disagreed.

     The circuit court struck parts of the testimony of one of

the examiners who had opined that Sylva lacked capacity,

psychiatrist Martin Blinder, M.D. (“Dr. Blinder”).      Defense

counsel had asked Dr. Blinder to explain the basis for his

opinion.   The prosecutor objected to the “last phrase” of Dr.

Blinder’s answer, in which Dr. Blinder stated Sylva was not a

“bad man who goes around hurting people.”     (Emphasis added.)

But after a sidebar, the circuit court instructed the jury to

disregard Dr. Blinder’s “last response.”     (Emphasis added.)    The

circuit court also sustained the prosecutor’s objection to Dr.

Blinder’s later testimony that to a reasonable degree of medical

probability, but for Sylva’s mental illness, he would not have



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killed Cerezo.   The circuit court stated before the jury, “I

ordered it stricken earlier.    I’ll order it stricken again.”

    Sylva was convicted of manslaughter based on extreme mental

or emotional disturbance (“EMED”).

    We hold the circuit court erroneously struck parts of Dr.

Blinder’s testimony because (a) a reasonable juror could have

believed the circuit court instructed them to disregard Dr.

Blinder’s entire answer explaining his opinion that Sylva lacked

capacity; (b) HRS § 704-410(4) provides that medical examiners

appointed pursuant to that chapter “shall be permitted to make

any explanation reasonably serving to clarify” their opinion;

and (c) the circuit court’s error was not harmless beyond a

reasonable doubt because Sylva’s insanity defense turned largely

on the medical examiners’ testimonies.

    We also hold the circuit court properly instructed the jury

on the application of the insanity defense to manslaughter based

on EMED.

    We therefore vacate the circuit court’s January 24, 2020

judgment, conviction, and sentence; as well as the Intermediate

Court of Appeal’s (“ICA”) January 3, 2023 judgment on appeal.

We remand to the circuit court for further proceedings

consistent with this opinion.




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                                II.   Background

A.      Factual background

        On March 18, 2018, Sylva was arrested for killing Cerezo

with a cane knife.1

        According to eyewitness Kyle Keoho (“Keoho”), earlier that

afternoon, Keoho and Cerezo had boarded a bus in Pukalani, Maui.

While on the bus, they noticed another passenger, Sylva,

“looking at [Cerezo] mean.”           Cerezo called Sylva a “pussy” and

threatened to beat him up.         When the bus arrived at the Queen

Kaʻahumanu Center in Kahului, Sylva, Keoho, and Cerezo got off

the bus.      Sylva challenged Cerezo to a fight.         Cerezo said he

did not want to fight.        Sylva stormed off.

        Shortly after, Cerezo and Keoho made a purchase and entered

a mall restroom.       Sylva entered the restroom with a cane knife.

Sylva said, “you guys are like demons.             I send them to the

moon.”      Sylva struck Cerezo’s neck with the cane knife, killing

him.     Sylva stated, “Oh, I guess he was a demon,” and told

Keoho, “Believe it or not, he was a demon.”

        Witnesses at trial testified that Sylva then fled the

scene, stopping to hide his jacket and the cane knife.               Sylva

was apprehended by police at Kahului Community Center Park.




1       The parties and witnesses at times refer to the weapon as a machete.



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        Sylva made various other references to demons before and

after his arrest.

B.      Circuit court proceedings2

        Sylva was charged by indictment3 with the offense of murder

in the second degree in violation of HRS § 707-701.5 (2014).

Sylva did not deny that he caused Cerezo’s death but asserted

the affirmative defense of insanity.

        1.    Medical examination

        Sylva filed a motion for examination to determine fitness

to proceed and/or penal responsibility.4            Pursuant to HRS § 704-

400 (2014), a person is not criminally responsible under the

Hawai‘i Penal Code if, “at the time of the conduct as a result of

physical or mental disease, disorder, or defect the person lacks

substantial capacity either to appreciate the wrongfulness of

the person’s conduct or to conform the person’s conduct to the

requirements of law.”        The circuit court appointed three

individuals to examine Sylva’s penal responsibility pursuant to


2       The Honorable Richard T. Bissen, Jr. presided over Sylva’s trial.

3     The State of Hawai‘i (“the State”) first filed a complaint in the
District Court of the Second Circuit (“district court”) charging Sylva with
second-degree murder. After Sylva was indicted in the circuit court, the
district court case was dismissed without prejudice.

4     The circuit court twice suspended the proceedings to examine Sylva’s
fitness to proceed, but the parties ultimately stipulated Sylva was fit to
proceed based on the uncontested findings of medical examiners appointed
pursuant to HRS § 704-404 (Supp. 2016).




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HRS § 704-407.5 (Supp. 2016):        (1) Melissa Vargo, Psy.D. (“Dr.

Vargo”), (2) Dr. Blinder, and (3) George C. Choi, Psy.D. (“Dr.

Choi”).5     The examiners submitted reports opining on Sylva’s

mental state at the time of the conduct.

        2.    Medical examiners’ trial testimonies

        At trial, amongst various other witnesses, Sylva called Dr.

Vargo and Dr. Blinder to testify, and the State called Dr. Choi.

All three examiners opined Sylva was affected by a mental

disease, disorder, or defect at the time of the conduct.             Only

Dr. Choi opined that mental state did not substantially impair

Sylva’s capacity so as to exclude penal responsibility.

              a.   Dr. Vargo

        First, Dr. Vargo, a clinical psychologist, opined that at

the time of the conduct, Sylva suffered from schizoaffective

disorder, bipolar type, causing Sylva to experience

hallucinations and delusions as well as mania and depression.

Dr. Vargo further opined that to a degree of psychological

certainty, Sylva lacked the “capacity to appreciate the

wrongfulness of his conduct or to conform his behavior to the

conduct of the law” at that time.         Dr. Vargo explained the basis


5     Dr. Vargo and Dr. Blinder were originally appointed by the district
court in the related district court proceedings. See supra note 3. The
parties stipulated to incorporate the earlier examinations of Dr. Vargo and
Dr. Blinder in the circuit court.




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for her opinion, including that Sylva had told her he did not

believe killing Cerezo was wrong because Cerezo was a demon; it

was a service to God.

            b.    Dr. Blinder

    Next, Dr. Blinder, a forensic psychiatrist, opined that

Sylva suffered from a psychotic disability profoundly affecting

his ability to think clearly and his interpretation of what he

sees.   Dr. Blinder also opined Sylva’s criminal responsibility

was “utterly lacking” at the time he killed Cerezo, and that

Sylva’s disorder “resulted in a lack of capacity to control

conduct under the law or appreciate wrongfulness.”

    Defense counsel asked Dr. Blinder to explain the basis for

his opinion:     “And could you help us explain why that is your

opinion.”    Dr. Blinder responded:

                  Let me tell you how I go about making these
            judgments. The first thing that I look at when there’s a
            homicide is whether or not there’s a reasonable reason for
            the defendant to have done what he did. I’m not saying a
            good reason. There’s never a good reason to kill someone.
            But maybe a drug bust – a drug deal that went bad, guy is
            supposed to give him drugs, he pays him and doesn’t get the
            money, he takes his life, or he’s insulted on a racial
            basis or something that we wouldn’t approve of but we can
            understand, that there’s been a longstanding conflict
            between the killer and the person that he kills, and it’s
            unforgivable but understandable.
                  I look for that. If I find that, then it’s pretty
            well the end of my participation. So even if he’s got a
            mental illness, I don’t care. We’ve got a rational reason
            for doing it. A doubt – being paranoid is not therapeutic,
            but that’s irrelevant. I’m done. As far as I’m concerned,
            he does not meet that standard that you just heard.
                  In the case of Mr. Sylva, there is no rational
            reason. There’s a very superficial reason, but the basic
            reason is he’s got a mission, he’s got a mission to rid the
            world of demons, and he was just getting started. This was
            obviously, in his delusional mind, a dangerous demon, and

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          for some reason, he – he’s been anointed by what he reads
          in the Bible to take care of this problem.
                And that’s nutty and it’s crazy, and absent for that
          nutty, crazy thing, he wouldn’t have hurt anybody. He’s
          not, you know, a bad man who goes around hurting people.
          But when he –

(Emphasis added.)

     The prosecutor then objected, “Your honor, I’m sorry, I’m

going to object to the last phrase and ask that it be stricken.”

(Emphasis added.)   Defense counsel asked on what grounds, and

the circuit court stated, “that wasn’t the question that was

asked.”   The parties then approached the bench for a sidebar.

The following discussion was held outside the hearing of the

jury:

                THE COURT: Sorry. So here’s what he said in the
          answer: “If it wasn’t for this nutty thing, he wouldn’t
          have hurt anybody. He’s not a bad man.”
                What part of that was the opinion that went to the
          question you asked?
                [DEFENSE COUNSEL]: I think he was explaining why he
          arrived to that opinion.
                THE COURT: No, no. I get that part, and that part
          he can answer.
                [DEFENSE COUNSEL]: Okay.
                THE COURT: But he says – he’s just editorializing,
          saying if it wasn’t for this, this wouldn’t happen and he’s
          not a bad man. If that was the question you asked, that
          would be okay, but that’s not the question you asked. And
          the State is correct, I think, in saying he’s going beyond
          the opinion.
                . . . .
                THE COURT: I mean, saying that he’s not a bad man,
          that’s not the issue. So I’ll sustain the objection – . .
          . . and have it stricken.

     When they returned, the circuit court stated to the jury,

“Ladies and gentlemen, I’ll ask you to disregard the last

response made by the witness and order that it be stricken.”

(Emphasis added.)


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        Defense counsel then continued direct examination of Dr.

Blinder, and the circuit court again struck a portion of Dr.

Blinder’s testimony explaining the basis for his opinion:

              BY [DEFENSE COUNSEL]:
                    Q. Your opinion is based in part on the fact that
              there is no rational explanation, correct?
                    A. Yes. Based – to a reasonable degree of medical
              probability, there does not appear to be a rational basis
              for his action, and that but for his psychotic illness, he
              would not have taken the life of this man.
                    [PROSECUTOR]: Your Honor, I’m going to object, move
              to strike that. It’s speculative.
                    [DEFENSE COUNSEL]: Your Honor, it is his opinion and
              he’s explaining why.
                    THE COURT: It’s his opinion that he suffers from –
                    [DEFENSE COUNSEL6]: It’s the second part.
                    THE COURT: I know. I heard. He’s – it’s his
              opinion that he suffers from a mental disease, and he’s
              giving a conclusion – or, excuse me, the word opinion about
              that. He’s adding on to that at the end of the answer. I
              ordered it stricken earlier. I’ll order it stricken again.
                    Ladies and gentlemen, when the Court orders something
              stricken, you’re not to consider it in your deliberations
              in any way. I’ll give you an instruction on that later.

(Emphases added.)

        On cross-examination, the prosecutor also questioned Dr.

Blinder concerning the basis for his opinion:

                    Q. So, Doctor, you – something you said earlier was
              that the first thing you look to is for a reasonable reason
              for committing a crime, correct?
                    A. Yes.
                    Q. And even though it might not be reasonable, let’s
              say, to us – you gave the example, I think, of a drug –
              drug deal gone bad was one of the reasons, right?
                    A. Yes, sir.
                    Q. Okay. So what you’re saying is, of course, the
              normal person who is not involved in drug deals wouldn’t
              kill over those types of things, right? But as a forensic
              psychologist looking for a reasonable or rational basis for


6     The transcript states defense counsel made this statement, but as the
ICA noted, the context indicates it may have actually been made by the
prosecutor. See State v. Sylva, No. CAAP-XX-XXXXXXX, 

, at *3
n.6 (Haw. App. Dec. 1, 2022) (SDO).



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          a killing, that is an example of something that you would
          find reasonable or rational, correct?
                A. Yeah. Specifically I’m looking for a non-mental
          illness reason.
                Q. . . . .
                    Another thing you said was something like a –
          someone receives a racial insult, right?
                A. Yes.
                Q. Okay. So, for example, . . . Cerezo and . . .
          Keoho got on the bus in this case and there’s a verbal
          altercation between those two and [Sylva], . . . they taunt
          him. Would that be one of the things that you might be
          looking for?
                A. That’s a hypothetical that I certainly would
          consider, yes.
                Q. Certainly if it – let’s say those taunts or – or
          name calling got to the point where the defendant felt that
          he was ready to fight them on the bus or right after they
          got off. I mean, that’s additional information in a
          hypothetical setting that might be helpful to you, correct?
                A. Yes.
                Q. And specifically in looking for that rational or
          reasonable – reasonable basis for the crime, for the
          killing, right?
                A. Yes.
                Q. Okay. And those are the types of things that
          would weigh in favor or at least make you think twice about
          whether or not there was some sort of rational or
          reasonable basis for a killing, correct?
                A. Right. We have two possibilities: One, as I
          say, but for a psychosis, they would not have killed; the
          other is, did this altercation or hypothetical provocation
          from the decedent reach that requisite reasonable response
          that a nonpsychotic person would act in the way that Mr.
          Sylva did? And that’s the very first thing I look at in a
          case like this.

That testimony was not stricken.

          c.    Dr. Choi

    The State called the third examiner, Dr. Choi, a clinical

psychologist.   Dr. Choi opined Sylva was suffering from

schizoaffective disorder.     However, unlike the other two

examiners, Dr. Choi also opined that although Sylva was

suffering from mental illness, “his capacity, cognitive and

volitional capacity, did not reach a threshold of substantial


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impairment” at the time of the conduct.        Dr. Choi testified his

opinion was based on various factors including that (1) Sylva

used marijuana either on the day of or the day before the

killing; (2) Sylva did not have a history of violent behavior

towards “demons” or anyone else, indicating an ability to

differentiate between right and wrong; (3) Sylva utilized

emergency rooms to get medications, indicating Sylva was aware

of his condition and knew how to get help; (4) Sylva attempted

to hide his jacket and cane knife after killing Cerezo,

indicating he knew he did something wrong; and (5) it appeared

Cerezo provoked Sylva on the bus and that Sylva wanted to teach

Cerezo a lesson, indicating goal-oriented behavior.

    3.    Jury instructions

    After closing arguments, the circuit court instructed the

jury on the insanity and EMED affirmative defenses as follows:

                         Instruction No. 25

                The defendant has raised the affirmative defense of
          physical or mental disease, disorder or defect excluding
          criminal responsibility. Before you may consider this
          affirmative defense, you must first determine whether the
          prosecution has proven all of the elements of Murder in the
          Second Degree or the included offense of Manslaughter
          beyond a reasonable doubt. If you unanimously find that
          the prosecution has not proven all of the elements of
          Murder in the Second Degree or the included offense of
          Manslaughter beyond a reasonable doubt, then you must find
          the defendant not guilty of that offense without
          considering the affirmative defense. If you unanimously
          find that the prosecution has proven all of the elements of
          Murder in the Second Degree or the included offense of
          Manslaughter beyond a reasonable doubt, then you must
          consider the affirmative defense.
                . . . .
                If you unanimously find that the defendant has proven
          both elements of the affirmative defense by a preponderance

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           of the evidence, then you must find the defendant not
           guilty of Murder in the Second Degree or the included
           offense of Manslaughter by reason of physical or mental
           disease, disorder or defect excluding criminal
           responsibility. If you unanimously find that the defendant
           has not proven both elements of the affirmative defense by
           a preponderance of the evidence, then you must consider the
           affirmative defense of Extreme Mental or Emotional
           Disturbance. (See instruction No. 26)
                 . . . .

                          Instruction No. 26

                 If and only if you unanimously find that all of the
           material elements of Murder in the Second Degree have been
           proven by the prosecution beyond a reasonable doubt, or you
           unanimously find that all of the material elements of the
           included offense of Manslaughter have been proven by the
           prosecution beyond a reasonable doubt, and you unanimously
           find that the defendant has not proven the elements of the
           affirmative defense of physical or mental disease, disorder
           or defect excluding criminal responsibility by a
           preponderance of the evidence, then you must consider the
           affirmative defense of Extreme Mental or Emotional
           Disturbance.
                 . . . .

(Emphases added.)    Sylva did not object.

     4.    Jury verdict, conviction, and sentencing

     The jury returned a verdict of guilty of manslaughter based

on EMED.   Accordingly, on January 24, 2020, the circuit court

entered its judgment, conviction, and sentence; in which it

found Sylva guilty of manslaughter based on EMED and sentenced

him to twenty years of incarceration.

C.   ICA proceedings

     Sylva appealed.     Sylva asserted the circuit court (1)

erroneously instructed the jury to disregard parts of Dr.

Blinder’s testimony, and (2) failed to instruct the jury that if

it found Sylva guilty of manslaughter based on EMED, it must

consider the affirmative defense of insanity.

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        Pursuant to its summary disposition order filed December 1,

2022, the ICA affirmed Sylva’s conviction.            Sylva, 

, at *5.

        First, the ICA determined “no reasonable juror could have

understood the circuit court to have instructed them to

disregard Dr. Blinder’s entire explanation for his opinion.”

Sylva, 

, at *2.          Citing Wakabayashi v. Hertz

Corp., 

, 

 (1983), the ICA

also concluded that even if the circuit court did erroneously

strike Dr. Blinder’s entire later statement that “[b]ased – to a

reasonable degree of medical probability, there does not appear

to be a rational basis for his action, and that but for his

psychotic illness, he would not have taken the life of this

man,”7 the error was harmless because the testimony was

cumulative.      Sylva, 

, at *3.


7     It appears the ICA conflated Sylva’s arguments concerning the two
disputed portions of Dr. Blinder’s testimony. Concerning the second portion
of stricken testimony, the ICA stated,

              Sylva argues that the circuit court struck Dr. Blinder’s
              entire answer: there did not appear to be a rational basis
              for Sylva’s actions, and but for Sylva’s psychotic illness
              he would not have taken [Cerezo’s] life. The State
              contends that only the second part of the answer was
              stricken.

Sylva, 

, at *3. But Sylva had made only the following
argument concerning the admissibility of the second portion of stricken
testimony: “The trial court compounded its error when it also instructed the
jury that it also could not consider Dr. Blinder’s opinion that ‘to a
reasonable degree of medical probability,’ but for Sylva’s psychotic illness,
he would not have killed Cerezo.”




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        In concluding any error was harmless, the ICA cited the

following testimony by Dr. Blinder, which the jury was allowed

to consider:         (1) Dr. Blinder’s opinion that criminal

responsibility was “utterly lacking” in Sylva’s case; (2) Dr.

Blinder’s explanation for his opinion that Sylva was psychotic,

and why Sylva’s running away from the scene and hiding the

weapon and his jacket were not inconsistent with a lack of

criminal responsibility;8 and (3) Dr. Blinder’s defense of his

opinion on cross-examination.         

        Second, the ICA framed Sylva’s jury instruction argument as

concerning “the order in which the jury was instructed to decide

the issues.”      Sylva, 

, at *4.       The ICA concluded

it made sense for the jury to consider the affirmative defense

of insanity before the mitigating defense of EMED, rather than

the other way around, because if the jury accepted Sylva’s

insanity defense, there would be no need to consider whether he

was under the influence of EMED.           Sylva, 

, at

*5.     Hence, the ICA also rejected Sylva’s jury instruction

argument.      

D.      Certiorari proceedings

        On certiorari, Sylva contends that the ICA gravely erred in

concluding the circuit court did not (1) erroneously strike

8     As explained infra, we do not agree that a reasonable juror would have
believed they were allowed to consider this explanation.



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parts of Dr. Blinder’s testimony explaining the basis for his

opinion that Sylva lacked capacity; or (2) commit instructional

error regarding the application of the insanity defense to

manslaughter based on EMED.

                      III. Standards of Review

A.   Statutory interpretation

                The interpretation of a statute is a question of law
          that this court reviews de novo. When construing a
          statute, our foremost obligation is to ascertain and give
          effect to the intention of the legislature, which is to be
          obtained primarily from the language contained in the
          statute itself. And we must read statutory language in the
          context of the entire statute and construe it in a manner
          consistent with its purpose.

State v. Abion, 148 Hawai‘i 445, 454, 

 (2020)

(cleaned up).

B.   Jury instructions

     “The standard of review for jury instructions that

were not objected to at trial was clarified in State v.

Nichols, 111 Hawai‘i 327, 

 (2006)[.]”         State v.

DeLeon, 131 Hawaiʻi 463, 479, 

 (2014).          In

Nichols, we held that

          although as a general matter forfeited assignments of error
          are to be reviewed under [Hawai‘i Rules of Penal Procedure
          (“HRPP”)] Rule 52(b) [(1977)] plain error standard of
          review, in the case of erroneous jury instructions, that
          standard of review is effectively merged with the HRPP Rule
          52(a) harmless error standard of review because it is the
          duty of the trial court to properly instruct the jury. As
          a result, once instructional error is demonstrated, we will
          vacate, without regard to whether timely objection was
          made, if there is a reasonable possibility that the error
          contributed to the defendant’s conviction, i.e., that the
          erroneous jury instruction was not harmless beyond a
          reasonable doubt.


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111 Hawai‘i at 337, 

 (footnote omitted).

                Thus, the appellant must first demonstrate
          instructional error by rebutting the presumption that
          unobjected-to jury instructions are correct. If the
          appellant is able to rebut this presumption, the burden
          shifts to the State to prove that the error was harmless
          beyond a reasonable doubt because [e]rroneous instructions
          are presumptively harmful and are a ground for reversal
          unless it affirmatively appears from the record as a whole
          that the error was not prejudicial. However, error is not
          to be viewed in isolation and considered purely in the
          abstract. It must be examined in the light of the entire
          proceedings and given the effect which the whole record
          shows it to be entitled.
                If the State cannot demonstrate that the error was
          harmless beyond a reasonable doubt, the conviction must be
          vacated.

DeLeon, 131 Hawaiʻi at 479, 

 (cleaned up).

                            IV.   Discussion

A.   The circuit court erroneously instructed the jury to
     disregard parts of Dr. Blinder’s testimony that should have
     been admitted under HRS § 704-410(4)

     Sylva first asserts the ICA gravely erred in concluding (a)

the circuit court did not erroneously strike parts of Dr.

Blinder’s testimony explaining the basis for his opinion that

Sylva lacked capacity under the legal standard for insanity, and

(b) that any such error was harmless.       We agree.

     1.   A reasonable juror could have believed the circuit
          court instructed them to disregard Dr. Blinder’s
          entire answer explaining his opinion

     The ICA erroneously concluded that “no reasonable juror

could have understood the circuit court to have instructed them

to disregard Dr. Blinder’s entire explanation for his opinion.”

Sylva, 

, at *2.


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    After Dr. Blinder opined Sylva lacked capacity at the time

of the conduct, defense counsel asked him to explain the basis

for his opinion.   The prosecutor objected to the “last phrase”

of Dr. Blinder’s answer, in which he stated Sylva is not a “bad

man who goes around hurting people.”     (Emphasis added.)

However, after a sidebar, the circuit court instructed the jury

to disregard Dr. Blinder’s “last response.”     (Emphasis added.)

A reasonable juror could have interpreted the term “response” to

refer to Dr. Blinder’s entire answer to defense counsel’s

question based on its common meaning.     See Response, Cambridge

Advanced Learner’s Dictionary (4th ed. 2013) (defining

“response” as “an answer or reaction” (emphasis added)).

    The State points to the sidebar discussion to argue the

circuit court only struck the “last phrase” of Dr. Blinder’s

answer.   But although the jurors heard the State object to the

“last phrase,” they were not privy to the sidebar discussion

concerning which part(s) of Dr. Blinder’s testimony were

objectionable and why.     The jurors only heard the circuit court

instruct them to disregard Dr. Blinder’s “last response.”       The

sidebar discussion is not part of the circuit court’s actual

instruction to the jury.     The jurors may well have surmised that

although the objection was to the “last phrase,” based on the

sidebar, the circuit court decided to strike the entire “last

response.”

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    Whether or not a reasonable juror could have interpreted

the circuit court’s instruction to disregard Dr. Blinder’s “last

response” as striking Dr. Blinder’s entire answer, a later

comment by the circuit court would have led them to that

conclusion.

    Later during direct examination, Dr. Blinder testified,

“Based – to a reasonable degree of medical probability, there

does not appear to be a rational basis for [Sylva’s] action, and

that but for his psychotic illness, he would not have taken the

life of this man.”   The circuit court again sustained the

prosecutor’s objection and stated in front of the jury:      “it’s

his opinion that he suffers from a mental disease, and he’s

giving a[n] . . . opinion about that.     He’s adding on to that at

the end of the answer.   I ordered it stricken earlier.     I’ll

order it stricken again.”   (Emphasis added.)

    Those statements implied to the jury that the circuit court

had struck more than just the “last phrase” of Dr. Blinder’s

earlier answer because Dr. Blinder’s statement that Sylva would

not have killed Cerezo absent his mental disorder was not the

“last phrase” of Dr. Blinder’s earlier response.      It was the




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second to last sentence.9       And the circuit court said it had

“ordered it stricken earlier.”10

        We therefore conclude a reasonable juror could have

believed the circuit court instructed them to disregard Dr.

Blinder’s entire answer explaining the basis for his opinion

that Sylva lacked capacity at the time of the conduct.

        2.    HRS § 704-410(4) provides that medical examiners
              “shall be permitted to make any explanation reasonably
              serving to clarify” their opinion

        Dr. Blinder’s stricken answer to defense counsel’s question

about the basis for his opinion was admissible to clarify his

opinion under HRS § 704-410(4).        Indeed, HRS § 704-410(4)

mandates its admission as a significant part of an insanity

defense “reasonably serving to clarify the examiner’s diagnosis

and opinion.”

        HRS chapter 704 governs the determination of a defendant’s

penal responsibility based on the insanity defense.            HRS § 704-

401 (2014) provides, “Evidence that the defendant was affected

by a physical or mental disease, disorder, or defect is

admissible whenever it is relevant to prove that the defendant

9     The end of Dr. Blinder’s response reads, “And that’s nutty and it’s
crazy, and absent for that nutty, crazy thing, he wouldn’t have hurt anybody.
He’s not, you know, a bad man who goes around hurting people. But when he –”

10    The State argues a reasonable juror would have interpreted the circuit
court’s comment to refer solely to Dr. Blinder twice “adding on” to the end
of his answer. We do not find this argument persuasive; at best, a
reasonable juror could have been confused as to which parts of Dr. Blinder’s
testimony they were allowed to consider.



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did or did not have a state of mind that is required to

establish an element of the offense.”

       Where a defendant’s capacity is at issue, section 704-407.5

provides for the appointment of three qualified examiners to

report upon the defendant’s “physical or mental disease,

disorder, or defect” “at the time of the conduct” for which the

defendant is prosecuted.       See HRS § 704-407.5(1)-(2).11       Section

704-410, in turn, governs testimony by the appointed examiners.12

See id. § 704-410.      Subsection (3) of section 704-410 provides

that

            [w]hen an examiner testifies on the issue of the
            defendant’s responsibility for conduct alleged or the issue
            of the defendant’s capacity to have a particular state of
            mind which is necessary to establish an element of the
            offense charged, the examiner shall be permitted to make a
            statement as to the nature of the examiner’s examination,
            the examiner’s diagnosis of the physical or mental
            condition of the defendant at the time of the conduct


11    In 2020, HRS § 704-407.5 was amended in part to “authorize the courts
to enter into agreements to divert into residential, rehabilitative, and
other treatment those defendants whose physical or mental disease, disorder,
or defect is believed to have become or will become an issue in a judicial
case.” HRS § 704-407.5 cmt. (Supp. 2020) (citing 2020 Haw. Sess. Laws Act
26, § 7 at 298-99). That process was not available at the time of the
circuit court proceedings in this case.

12    Hawai‘i Rules of Evidence (“HRE”) Rule 702 (2016) generally governs the
admissibility of expert testimony. It provides:

            If scientific, technical, or other specialized knowledge
            will assist the trier of fact to understand the evidence or
            to determine a fact in issue, a witness qualified as an
            expert by knowledge, skill, experience, training, or
            education may testify thereto in the form of an opinion or
            otherwise. In determining the issue of assistance to the
            trier of fact, the court may consider the trustworthiness
            and validity of the scientific technique or mode of
            analysis employed by the proffered expert.




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            alleged, and the examiner’s opinion of the extent, if any,
            to which the capacity of the defendant to appreciate the
            wrongfulness of the defendant’s conduct or to conform the
            defendant’s conduct to the requirements of law or to have a
            particular state of mind which is necessary to establish an
            element of the offense charged was impaired as a result of
            physical or mental disease, disorder, or defect at that
            time.

Id. § 704-410(3).     Subsection (4) further provides, “When an

examiner testifies, the examiner shall be permitted to make

any explanation reasonably serving to clarify the

examiner’s diagnosis and opinion and may be cross-examined

as to any matter bearing on the examiner’s competency or

credibility or the validity of the examiner’s diagnosis or

opinion.”    Id. § 704-410(4) (emphases added).         In using the

language “shall be permitted,” HRS § 704-410(4) mandates

that a trial court admit “any explanation” of an examiner

“reasonably serving to clarify the examiner’s” opinion.

See State v. Shannon, 118 Hawaiʻi 15, 25, 

(2008) (“[I]t is a well-established tenet of our

statutory interpretation that the use of the word ‘shall’

generally indicates the legislature’s intention to make a

provision mandatory, as opposed to discretionary.”

(citations omitted)).

     In addition, the commentary to HRS § 704-410 explains that

            [s]ubsections . . . (3) and (4) assure that an expert who
            has examined the defendant will have an adequate
            opportunity to state and explain the expert’s diagnosis of
            the defendant’s relevant physical or mental condition and
            to state and explain the expert’s opinion as to the
            impairment of the defendant’s relevant capacities without


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           being restricted to examination by means of the
           hypothetical question.

HRS § 704-410 cmt.

    Here, Dr. Blinder was appointed to report on Sylva’s

criminal responsibility pursuant to HRS chapter 704.           At trial,

Dr. Blinder testified in response to defense counsel’s question

concerning why it was his opinion that Sylva’s psychotic

disability resulted in a lack of capacity at the time of the

conduct.   Dr. Blinder’s answer to that question was admissible

under HRS § 704-410(4) because it reasonably served to clarify

Dr. Blinder’s opinion.     It is undisputed that at minimum, the

following part of Dr. Blinder’s answer was admissible:

                 Let me tell you how I go about making these
           judgments. The first thing that I look at when there’s a
           homicide is whether or not there’s a reasonable reason for
           the defendant to have done what he did. I’m not saying a
           good reason. There’s never a good reason to kill someone.
           But maybe a drug bust – a drug deal that went bad, guy is
           supposed to give him drugs, he pays him and doesn’t get the
           money, he takes his life, or he’s insulted on a racial
           basis or something that we wouldn’t approve of but we can
           understand, that there’s been a longstanding conflict
           between the killer and the person that he kills, and it’s
           unforgivable but understandable.
                 I look for that. If I find that, then it’s pretty
           well the end of my participation. So even if he’s got a
           mental illness, I don’t care. We’ve got a rational reason
           for doing it. A doubt – being paranoid is not therapeutic,
           but that’s irrelevant. I’m done. As far as I’m concerned,
           he does not meet that standard that you just heard.
                 In the case of Mr. Sylva, there is no rational
           reason. There’s a very superficial reason, but the basic
           reason is he’s got a mission, he’s got a mission to rid the
           world of demons, and he was just getting started. This was
           obviously, in his delusional mind, a dangerous demon, and
           for some reason, he – he’s been anointed by what he reads
           in the Bible to take care of this problem.

But Dr. Blinder’s next sentence, “And that’s nutty and it’s

crazy, and absent for that nutty, crazy thing, he wouldn’t have

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hurt anybody,” was also admissible under HRS § 704-410(4)

because it reasonably served to clarify Dr. Blinder’s opinion as

to “the impairment of the defendant’s relevant capacities.”               See

HRS § 704-410 cmt.      Thus, it was error for the circuit court to

instruct the jury to disregard Dr. Blinder’s entire answer.13

     It was also error for the circuit court to strike Dr.

Blinder’s later testimony that to a reasonable degree of medical

probability, “but for [Sylva’s] psychotic illness, he would not

have taken the life of this man.”         The State argues the circuit

court properly struck that portion of Dr. Blinder’s testimony as

speculative.    However, that testimony, too, falls under the

purview of HRS § 704-410(4) because it similarly reasonably

served to clarify Dr. Blinder’s opinion that Sylva lacked

capacity.

     3.     The erroneous striking of parts of Dr. Blinder’s
            testimony explaining his opinion was not harmless
            beyond a reasonable doubt

     We have said:

            [E]rror is not to be viewed in isolation [or] considered
            purely in the abstract. Recognizing as much, this court
            applies the harmless error doctrine to errors that occur in
            the trial process . . . . Consistent with the harmless
            error doctrine, we have frequently stated that error must
            be examined in light of the entire proceedings and given
            the effect to which the whole record shows it is entitled.
            In that context, the real question becomes whether there is

13    Because we hold that a reasonable juror could have interpreted the
circuit court to instruct them to disregard Dr. Blinder’s entire answer,
including the above paragraphs, we need not decide whether the “last phrase”
of Dr. Blinder’s answer, that Sylva is not a “bad man who goes around hurting
people,” was properly excluded.



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           a reasonable possibility that the error might have
           contributed to conviction.

State v. Aplaca, 96 Hawaiʻi 17, 25, 

 (2001)

(emphasis added) (cleaned up).       “[W]here there is a wealth of

overwhelming and compelling evidence tending to show the

defendant guilty beyond a reasonable doubt, errors in the

admission or exclusion of evidence are deemed harmless.”         State

v. Veikoso, 126 Hawai‘i 267, 276, 

 (2011)

(quoting State v. Toyomura, 80 Hawai‘i 8, 27, 

(1995)).   “[A] narrow or strict application of the harmless

error rule appropriately protects a defendant’s rights and the

integrity of the trial process.”         Aplaca, 96 Hawaiʻi at 27 n.7,

 n.7.

     Citing a civil case, Wakabayashi, 

, 

, the ICA concluded that even if the circuit court

erroneously struck Dr. Blinder’s statement that “[b]ased – to a

reasonable degree of medical probability, there does not appear

to be a rational basis for his action, and that but for his

psychotic illness, he would not have taken the life of this

man,” the error was harmless because the testimony was

cumulative.   Sylva, 

, at *3.

     However, our holding in civil cases that “where essentially

the same evidence is given by . . . other means, the trial

court’s exclusion of relevant evidence constitutes harmless


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error” does not apply to the criminal context.           See Wakabayashi,

, 

 (citing Kekua v. Kaiser Found.

Hosp., 

, 

 (1979)).            The ICA

erred when it applied that holding to Sylva’s case.            Our

application of the harmless error rule in criminal cases is

narrower, and the ultimate standard must always be “whether

there is a reasonable possibility that the error might have

contributed to conviction.”       See Aplaca, 96 Hawaiʻi at 25, 27

n.7, 

, 802 n.7 (quoting State v. Gano, 92 Hawaiʻi

161, 176, 

 (1999)).

     Parts of Dr. Blinder’s erroneously stricken explanation for

his opinion may have been cumulative.         On cross-examination by

the State, the jury heard Dr. Blinder again explain his process

for determining whether a defendant is criminally responsible;

that testimony was not struck.14       But Dr. Blinder did not again


14    Sylva does not raise his constitutional right to present a complete
defense, but we emphasize that such right is held by the defendant and is not
satisfied solely by evidence elicited by the State. See U.S. Const. amend.
XIV; Haw. Const. art. I, § 5; Abion, 148 Hawai‘i at 454, 

(“Central to the protections of due process is the right to be accorded a
meaningful opportunity to present a complete defense. Thus, a defendant has
the constitutional right to present any and all competent evidence in their
defense.” (emphasis added) (cleaned up)).
      Further, we have maintained that

           [l]ack of penal responsibility is not merely a statutory
           affirmative defense; it reflects a precept that is
           fundamental to due process under the Hawai‘i Constitution:
           “A defendant who, due to mental illness, lacks sufficient
           mental capacity to be held morally responsible for his
           actions cannot be found guilty of a crime.”


                                                              (continued. . .)

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expressly testify that he determined in Sylva’s case, there was

merely a “very superficial” reason for the killing – that

            the basic reason is he’s got a mission . . . to rid the
            world of demons . . . . This was obviously, in his
            delusional mind, a dangerous demon, and for some reason, .
            . . he’s been anointed by what he reads in the Bible to
            take care of this problem.

      More importantly, because the jury was precluded from

considering Dr. Blinder’s answer explaining the basis for his

opinion, the jury may have placed less weight on his opinion,

which was pivotal to Sylva’s insanity defense.           Additionally, in

contrast to Dr. Blinder, Dr. Choi testified his opinion was

partly based on the verbal dispute between Cerezo and Sylva on

the bus; Dr. Choi testified that Sylva engaged in intentional

and goal-oriented behavior, indicating no substantial

impairment, because Sylva wanted to teach Cerezo a lesson after

Cerezo provoked Sylva on the bus.         There is a reasonable

possibility that the circuit court’s erroneous instruction to

disregard Dr. Blinder’s contrary testimony that there was only a

“very superficial” reason for Sylva to kill Cerezo apart from

his mental disorder might have contributed to Sylva’s

conviction.    See Aplaca, 96 Hawaiʻi at 25, 

.


(. . . continued)

Abion, 148 Hawai‘i at 458, 

 (quoting State v. Glenn, 148
Hawai‘i 112, 116, 

 (2020)) (holding the circuit court’s
wholesale preclusion of a medical examiner from testifying at trial violated
the defendant’s constitutional right to present a complete defense).



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     This is not a case where there was a “wealth of

overwhelming and compelling evidence tending to show” Sylva was

guilty beyond a reasonable doubt, for there was substantial

evidence to support Sylva’s insanity defense.      See Veikoso, 126

Hawai‘i at 276, 

.      The record shows voluminous

evidence supporting Sylva’s mental disorder, including

references to demons and aliens, as well as evidence that Sylva

believed Cerezo was a demon.     All three examiners agreed that

Sylva suffered from a mental disease, disorder, or defect at the

time of the conduct, and two of the three opined that as a

result, Sylva lacked capacity at the time of the conduct.

     Because the insanity defense in this case turned largely on

the three medical examiners’ testimonies, the striking of parts

of Dr. Blinder’s explanation for his opinion was not harmless

beyond a reasonable doubt.     See, e.g., DeLeon, 131 Hawaiʻi at

486, 

 (holding that because the defendant’s

“defense depended heavily on” the decedent’s “behavior

immediately before [the defendant] shot him, there [was] a

reasonable possibility that the exclusion of” the expert’s

testimony about the influence of substances on the decedent’s

behavior “affected the outcome of the trial”); Gano, 92 Hawaiʻi

at 176-77, 

 (holding there was “more than a

reasonable possibility” that the erroneous admission of evidence

that contributed to the complainant’s credibility and weighed

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against the defendant’s credibility contributed to the

defendant’s conviction).

     The State contends that even if the circuit court erred,

Sylva waived this argument.       The State alleges Sylva waived any

argument based on the circuit court’s striking of Dr. Blinder’s

testimony because Sylva did not then raise an objection to the

circuit court’s directive to the jury to disregard Dr. Blinder’s

“last response.”     The State is simply wrong.        Sylva had no duty

to “object” to the court’s sustaining of an objection.15



15   HRE Rule 103 (2016) provides in relevant part:

           Rule 103. Rulings on evidence. (a) Effect of erroneous
           ruling. Error may not be predicated upon a ruling which
           admits or excludes evidence unless a substantial right of
           the party is affected, and:

                 (1) Objection. In case the ruling is one admitting
                 evidence, a timely objection or motion to strike
                 appears of record, stating the specific ground of
                 objection, if the specific ground was not apparent
                 from the context; or

                 (2) Offer of proof. In case the ruling is one
                 excluding evidence, the substance of the evidence was
                 made known to the court by offer or was apparent from
                 the context within which questions were asked.

           Once the court makes a definitive ruling on the record
           admitting or excluding evidence, either at or before trial,
           a party need not renew an objection or offer of proof to
           preserve a claim of error for appeal.

This was not a ruling admitting evidence under HRE Rule 103(a)(1). It was a
ruling excluding evidence under HRE Rule 103(a)(2), which would have required
an offer of proof if “the substance of the evidence” was unknown. Here, the
evidence stricken was clearly known. And pursuant to the rule, once the
circuit court made its definitive ruling striking the evidence, Sylva was not
required to renew an objection or present an offer of proof to preserve the
issue for appeal. See generally Kobashigawa v. Silva, 129 Hawaiʻi 313, 

 (2013).



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     Sylva has demonstrated error and the State has not

demonstrated the error was harmless beyond a reasonable doubt.

See Aplaca, 96 Hawaiʻi at 25, 

.         We therefore

vacate Sylva’s conviction on these grounds.

B.   The circuit court properly instructed the jury on the
     application of the insanity defense to manslaughter based
     on EMED

     Sylva also contends the ICA gravely erred in concluding the

circuit court did not erroneously fail to instruct the jury that

if it found Sylva guilty of manslaughter based on EMED, it must

then consider the insanity defense.        We hold the circuit court

properly instructed the jury on the application of the insanity

defense to manslaughter based on EMED.

     HRS § 707-702(2) (2014)16 provides for the affirmative

defense of EMED.    EMED is referred to as a “mitigating” defense

because where a defendant establishes the elements of EMED by a

preponderance of the evidence, first- and second-degree murder

or attempted murder offenses are reduced to manslaughter or


16   HRS § 707-702(2) provided:

           In a prosecution for murder or attempted murder in the
           first and second degrees it is an affirmative defense,
           which reduces the offense to manslaughter or attempted
           manslaughter, that the defendant was, at the time the
           defendant caused the death of the other person, under the
           influence of extreme mental or emotional disturbance for
           which there is a reasonable explanation. The
           reasonableness of the explanation shall be determined from
           the viewpoint of a reasonable person in the circumstances
           as the defendant believed them to be.




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attempted manslaughter.      See HRS §§ 707-702(2), 701-115 (2014)

(defining affirmative defenses and the requisite burden of

proof); State v. Aganon, 97 Hawaiʻi 299, 302, 

 (2001) (referring to EMED as a “mitigating defense”).

    HRS § 704-400 lays out the insanity defense.            It provides

in relevant part that

           [a] person is not responsible, under this Code, for conduct
           if at the time of the conduct as a result of physical or
           mental disease, disorder, or defect the person lacks
           substantial capacity either to appreciate the wrongfulness
           of the person’s conduct or to conform the person’s conduct
           to the requirements of law.

HRS § 704-400(1).    If a defendant proves insanity by a

preponderance of the evidence, they are entitled to acquittal.

See id. §§ 701-115, 704-400(1), 704-402(1) (2014) (providing

that insanity is an affirmative defense).

    Sylva does not contend the jury instructions on the

insanity defense contained incorrect statements of law.            Rather,

Sylva’s challenge relates to the order in which the circuit

court instructed the jury to consider the affirmative defenses

of insanity and EMED.

    We have recognized that “a correct statement of the law

does not always reflect an appropriate jury instruction in every

case.”   State v. Uyesugi, 100 Hawaiʻi 442, 457, 

(2002) (citation omitted).      The question still remains whether,

“when considered as a whole, the instructions given are



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prejudicially insufficient, inconsistent, or misleading.”             

(citing Aganon, 97 Hawaiʻi at 302, 

).

     We have not previously decided the order in which a jury

should be instructed to consider the insanity and EMED

defenses.17

     In concurrences in Yamada, 99 Hawaiʻi 542, 

, and

Uyesugi, 100 Hawaiʻi 442, 

, Justice Acoba opined as to

his belief regarding the proper order of the insanity and EMED

jury instructions:      “‘[T]he jury was required to decide the

insanity defense which would exclude responsibility for first

degree murder, before proceeding to consider the mitigating

defense of manslaughter,’ inasmuch as the insanity defense

completely negates guilt, while the emotional disturbance

defense only mitigates guilt.”        Uyesugi, 100 Hawaiʻi at 473, 

 (Acoba, J., concurring) (quoting Yamada, 99 Hawaiʻi

at 561, 

 (Acoba, J., concurring)).




17    In State v. Miyashiro, 90 Hawaiʻi 489, 

 (App. 1999), the ICA
held a trial court must instruct the jury that it is required to “unanimously
agree that all elements of the charged offenses ha[ve] been established
beyond a reasonable doubt before considering” an affirmative defense. 90
Hawaiʻi at 500, 

; see also Uyesugi, 100 Hawaiʻi at 459, 

 (“The Miyashiro analysis is correct.”). Miyashiro did not involve a
mitigating defense. See 90 Hawaiʻi at 500, 

. But
“Miyashiro indicated that the instructions should be given in a sequence
consistent with the logical progression of determining acquittal or guilt.”
State v. Yamada, 99 Hawaiʻi 542, 558, 

 (2002) (Acoba, J.,
concurring).



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    Justice Acoba’s concurrence in Yamada relied in part on a

New York case, People v. Johns, 

 (N.Y. App. Div.

1986).   See Yamada, 99 Hawaiʻi at 561, 

 (citing

Johns, 

).      In Johns, the New York Supreme Court,

Appellate Division, reversed the trial court’s judgment

convicting the defendant of manslaughter based on extreme

emotional disturbance.      

.      The defendant had

raised the defenses of insanity and extreme emotional

disturbance under applicable state law.          

.        In

that case, the trial court charged the jury as follows:

            [I]f the People had proven intentional murder beyond a
            reasonable doubt, the jury was then to consider the
            affirmative defense of extreme emotional disturbance. The
            court further instructed the jury that if it found that the
            defendant suffered from an extreme emotional disturbance,
            it should report its verdict of guilty of manslaughter in
            the first degree by reason of extreme emotional
            disturbance. If the jury found the defendant guilty of
            intentional murder, not mitigated by extreme emotional
            disturbance, it was to consider the defense of mental
            disease or defect, known as the insanity defense.

.

    On review, the appellate court concluded the trial court’s

jury instructions, though not objected to, improperly “created

the misleading impression that the insanity defense did not

apply if the jury found that the defendant satisfied his burden

of proving that he was acting while under the influence of an

extreme emotional disturbance.”        

 (citation

omitted).    The appellate court noted the extreme emotional

disturbance instruction “made no reference to the insanity

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defense” and determined the trial court thus “impermissibly

curtailed the jury’s consideration of the insanity defense.”

      In contrast, here, the circuit court instructed the jury to

consider the insanity defense if the State established all the

elements of the offense, and to only consider EMED if it

unanimously found the insanity defense did not apply.           In other

words, the circuit court expressly instructed the jury to

consider the insanity defense before EMED; the jury was to

consider insanity regardless of whether EMED applied.

      Unlike in Johns, the EMED instruction here expressly

referenced the insanity defense.        The beginning of the EMED

instruction, instruction no. 26, stated,

                If and only if you unanimously find that all of the
          material elements of Murder in the Second Degree have been
          proven by the prosecution beyond a reasonable doubt, or you
          unanimously find that all of the material elements of the
          included offense of Manslaughter have been proven by the
          prosecution beyond a reasonable doubt, and you unanimously
          find that the defendant has not proven the elements of the
          affirmative defense of physical or mental disease, disorder
          or defect excluding criminal responsibility by a
          preponderance of the evidence, then you must consider the
          affirmative defense of Extreme Mental or Emotional
          Disturbance.

(Emphases added.)   Because the circuit court expressly

instructed the jury to consider insanity before EMED, it is

unlikely that the instructions misled the jurors into

believing they were not to consider the insanity defense

for manslaughter based on EMED.


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     We agree with Justice Acoba’s concurrences in Yamada and

Uyesugi regarding the proper order of the jury instructions on

the insanity and EMED affirmative defenses.     See Yamada, 99

Hawaiʻi at 561, 

; Uyesugi, 100 Hawaiʻi at 473, 

.   If the jury had accepted the insanity defense, it

would have been required to acquit Sylva, and the EMED

mitigating defense would have been inapplicable.      Hence, the

circuit court properly instructed the jury to consider the

insanity defense before EMED.

     There is nothing in the record on appeal indicating those

jury instructions were prejudicially insufficient, inconsistent,

or misleading.   See Uyesugi, 100 Hawaiʻi at 457, 

.

Sylva did not meet his initial burden to prove error on this

issue.   See id.; DeLeon, 131 Hawaiʻi at 479, 

.

Therefore, the ICA did not gravely err in affirming the circuit

court as to those jury instructions.

                          V.    Conclusion

     Based on the circuit court’s erroneous striking of parts of

Dr. Blinder’s testimony, we vacate the circuit court’s January

24, 2020 judgment, conviction, and sentence; as well as the

ICA’s January 3, 2023 judgment on appeal, and we remand to the




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circuit court for further proceedings consistent with this

opinion.18

William H. Jameson, Jr.                    /s/ Mark E. Recktenwald
for petitioner
                                           /s/ Sabrina S. McKenna
Richard B. Rost
for respondent                             /s/ Todd W. Eddins

                                           /s/ James S. Kawashima

                                           /s/ Henry T. Nakamoto




18    We note that double jeopardy principles preclude Sylva from being
retried for second-degree murder because Sylva’s successful use of the EMED
defense entitled him to an acquittal of the murder charge. See U.S. Const.
amend. V; Haw. Const. art. I, § 10; Whiting v. State, 88 Hawai‘i 356, 360, 

 (1998) (holding double jeopardy principles barred
reprosecution for second-degree murder because the defendant’s successful use
of the EMED defense entitled him to an acquittal of the second-degree murder
charge); see also HRS § 701-115(2)(b) (establishing the burden of proof for
affirmative defenses, which entitle defendants to an acquittal); HRS § 707-
702(2) (laying out the affirmative defense of EMED). The State may, however,
retry Sylva for manslaughter. See Whiting, 88 Hawai‘i at 360-62, 

 (noting that reprosecution for the offense of reckless manslaughter
is the functional equivalent of a retrial for manslaughter based on EMED).



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